The Expanding Scope of Therapeutic Jurisprudence

Therapeutic jurisprudence makes a contribution by bringing under one conceptual umbrella many legal areas that previously had not been thought to be related (Wexler, 1995; Wexler and Winick, 1996). Moreover, its principal power is to generate questions that otherwise might well go unasked. Perhaps the best way to approach the question of the distinctiveness of therapeutic jurisprudence is to ask how likely, without a therapeutic jurisprudence perspective, it would have been that we would ask the following questions which are representative of therapeutic jurisprudence:

• Can a judge's colloquy with a criminal defendant at a plea hearing influence the defendant's acceptance of responsibility (Wexler and Winick, 1992)?

• Can a judge conduct a sentencing hearing in a manner likely to increase a criminal defendant's compliance with conditions of probation (Wexler, 1993 c)?

• Is 'sentence bargaining' less likely to interfere with later efforts at offender rehabilitation than 'charge bargaining' (Wexler, 1993c; Wexler and Winick, 1992)?

• How can a judge's functioning in domestic violence court act so as to facilitate the healing of victims of spousal abuse (Winick, 2000a)?

• Can 'teen courts' increase empathy in delinquent youths by having those youths serve as attorneys for victims in teen court proceedings (Shiff and Wexler, 1996; Wexler, 2000)?

• How can a judge's functioning in drug treatment courts minimize the perception of coercion on the part of those electing this form of diversion from the criminal process (Winick and Wexler, in press)?

• Might a fault-based tort system promote recovery better than a no-fault system (Shuman, 1994)?

Like law and economics, therapeutic jurisprudence is essentially a consequentialist approach to law. Both evaluate law on the basis of its consequences. Therapeutic jurisprudence focuses on a particular kind of consequence—the therapeutic—and calls for study of the law's impact on health and mental health. This assessment should be scientific, based on empirical research.

But what is therapeutic? Therapeutic jurisprudence has been criticized for not offering a clear-cut definition of the term therapeutic (Melton, 1994). As amere lens or heuristic for better seeing and understanding the law, however, therapeutic jurisprudence has opted not to provide a tight definition of the term, thereby allowing commentators and researchers to broadly roam within the intuitive and common-sense contours of the concept (Wexler, 1993a).

There remains, however, the question ofwhat therapeutic should mean for the purposes of researchers and academics. At the outset, it is important to consider the involvement and input of consumers-recipients at the research stage (Shuman, Hamilton and Daley, 1994; Zito, Vitrai and Craig, 1993; Wexler and Winick, 1993). A tight definition of 'therapeutic' should be avoided. A restrictive definition might simply be ignored by the research community or, far worse, might be taken seriously and might prematurely eclipse the issues that may be subject to research (Wexler, 1995).

Of course, working within the broad intuitive boundaries of the concept, each individual researcher or academician writing about therapeutic jurisprudence must settle on a definition of therapeutic and ought to be fairly explicit about what definition is being used and why (Cohen and Dvoskin, 1993; Slobogin, 1995). Making the definition reasonably explicit will ease the empirical measurement of dependent variables or outcome measures and will also raise the issue for normative debate in the political arena. Naturally, empirical researchers will bear the brunt of this obligation, but even articles of a more theoretical and speculative nature need to be sensitive—more sensitive than they have been—to the definitional matters. For example, is rehabilitation defined by attitudinal changes or by the absence of criminal activity (itself measured by self-reports or by official records)? Should one care about achieving rehabilitation if it is manifested only by attitudinal change? Why or why not? How is emotional stress to be measured? Should one be concerned with the law's impact on emotional stress in the short-term, in the long-term, or both? Why? Thus, it is important for each writer, commentator, or researcher to come to grips with the therapeutic dimension so that research and debate might best proceed (Wexler, 1995).

Although the definition of the term 'therapeutic' thus needs to be left very flexible for purposes of promoting research, it is also probably true that, to preserve the camaraderie (and efficient work) of a common scholarly community, there ought to be some notion about the core concept and its rough bounds. In that connection it is noteworthy that the therapeutic jurisprudence literature to date has overwhelmingly conformed to areas within the ordinary mental health/health connotations of the term therapeutic: mental health/mental illness and health, illness, injury, disability, treatment, rehabilitation, and habilitation. Moreover, because therapeutic jurisprudence conceptualizes the law itself as the therapeutic agent, the focus has been on sociopsy-chological ways in which mental health, health and mental illness might be promoted or inhibited by the law (Wexler, 1995).

Therefore, what is meant by 'therapeutic' far exceeds the reversal of ill health. On the other hand, the term 'therapeutic' has not yet become (and for research purposes ought not to become) synonymous with simply achieving intended or desirable outcomes. Therapeutic jurisprudence seeks to retain its distinctiveness as a discipline relating to mental health and psychological aspects of health. Thus, certain matters central to law and psychology generally, such as the accuracy of eyewitness identification or the impact of jury size on jury decision-making, would not in and of themselves be of interest to therapeutic jurisprudence. Such areas could be brought into therapeutic jurisprudence, however, if they were expanded to ask certain questions about impact on emotional life. It would be interesting to know, for example, whether in traumatic criminal cases six-person juries suffer greater or less stress than 12-person juries (Wexler, 1995).

More to the point, it will be helpful to the therapeutic jurisprudence community if a relatively discrete literature is regarded as principally relevant to the enterprise (Wexler, 1995). Of special interest should be those articles, whether expressly related to law or not, that are written on cognitive-affective-behavioral topics by and for mental health professionals—psychiatrists, psychologists, social workers, counselors, and criminal justice and correctional professionals. In that way efficiency will be promoted, for therapeutic jurisprudence scholars will have a handle on the kind of literature they need to keep up with and examine through the legal lens of therapeutic jurisprudence. When one looks through a therapeutic jurisprudence lens at behavioral science literature on the cognitive distortion of sex offenders, one is tempted to ask how the law might promote or inhibit cognitive distortions. Similarly, when one approaches the psychological principles of health care compliance through a therapeutic jurisprudence lens, one might want to ask whether those principles might somehow be imported into the legal system (Wexler, 1992b).

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